Month: November 2018

Note: This article has not been updated since 2018. Laws and processes may have changed since the writing of this article. This is not legal advice and should only be used as informational.

No part of this should be taken as legal advice or  an individual assessment of risk. Consult a trusted and experienced immigration attorney before making decisions about your travel plans.

A note from Mijente

[Click here for a pdf version]

This year Lanzate 2018 will be taking place in San Antonio, Texas. Although San Antonio is outside the jurisdiction of the U.S. Customs and Border patrol, there are risks for undocumented, non-citizen, and criminalized travelers, both at the airport and on the roads. We gathered this information attempting to make the process of researching risk and minimizing risk more accessible to attendees. The information gathered has been vetted by immigration attorneys, experienced organizers, and undocumented travelers with experience in San Antonio, but please remember that no part of this should be taken as legal advice or an individual assessment of risk. Consult a trusted and experienced immigration attorney before making decisions about your travel plans.

STATE AND LOCAL POLICIES

In May 2017 the Governor of Texas signed Senate Bill 4 (SB4), a state law that attempted to force local governments and local law enforcement to act as immigration agents and collaborate with Immigration and Customs Enforcement (ICE).  

There have been several challenges regarding the constitutionality of the law, which toned down some of the problematic aspects, but a judge allowed it to go into effect on March 13, 2018. Although it is actually still being challenged in court even this month – including by the San Antonio Mayor – here are some things to be aware of:

• Local police or law enforcement – including university campus police – can chose to ask about immigration  status only  during a “lawful stop” or arrest. Local police officers are not required to ask and cannot stop you solely to ask about your immigration status or for papers.
• If local police chose to ask immigration status or if they somehow learn that you are undocumented, they still cannot hold you to investigate or to ask ICE. But, the officer can release you and then provide that information to ICE (but again, is not required to do so and can choose not to).
• Local police may racially profile Latinos assuming lack of immigration status. As the Immigrant Legal Resource Center warns, “because of SB4, police may be more likely to stop and arrest immigrants or question people about immigration status, even though this may be illegal discrimination.”
• SB4 requires police and jails to detain immigrants for transfer to ICE if ICE requests it (called an immigration detainer). SB4 prohibits any local policies to protect immigrants from ICE or prohibiting the response to immigration detainers by police.
• School police or contracted officers cannot ask about a parent or student’s immigration status, except as permitted by federal law. A student’s education records are also confidential and cannot be shared with police, unless required by law.

Some of the recommendations from the ACLU in Texas for what to do from the If questioned about your immigration status by local or state police, include:

1. Know that you do not have to answer any questions about your immigration status, including where you were born, how you entered the U.S., if you are a citizen, or if you have lawful status or “papers.”
2. You have the right to remain silent. Simply say clearly that you wish to remain silent and that you do not wish to answer any questions about your status.
3. If you are stopped in your car, neither the driver nor passengers need to answer questions about anyone’s immigration status. If you are the driver of the vehicle, you should provide your driver’s license, proof of insurance and registration to the requesting officer, if you have them. Do not provide false documents.
4. If you are a passenger in a car, you can ask if you are free to leave. If yes, silently leave. You do not need to provide foreign identification.Do not provide false documents.
5. If you are under arrest: You must give your name, residence address, and date of birth only.You do not have to answer any other questions. Say clearly that you wish to remain silent.Do not say anything else, sign anything, or make any decisions without a lawyer.

The city of San Antonio itself has been one of the ones pushing back against SB4, but we know that it doesn’t make it immune to ICE enforcement or police violence and discrimination. From information from local organizers and information gathered about local laws, we know that:

• ICE in San Antonio most often targets people who are in custody, targeting people with misdemeanors and some times racially profiling. This is consistent with what’s in SB4.
• There is a segment of the police union who are very openly Trump supporters, many of the Latinx. It has been reported that there are cases of police officers targeting Latinxs, just to take them into custody and potentially be turned over to ICE.
• Much of the ICE enforcement activity takes place in the trailer parks, particularly those where Latinx communities live.
• There are organizations working to introduce policies that will decarcerate as a way to defend immigrants and towards decreasing the number of incarcerated people.
• There has been one recent case of border patrol taking someone into custody in the city, but typically Border Patrol is not seen within San Antonio.

BORDER PATROL CHECKPOINTS

San Antonio is about 150 miles from the U.S.-Mexico border. Technically, it is outside the 100 mile zone from the Border where Customs and Border Patrol (CBP) has jurisdiction. But there are some border patrol checkpoints and relevant information to be aware of, particularly if you are traveling by road south of San Antonio. Please be aware that these may apply if you are traveling by car or by bus, to or from southern texas, before or after Lánzate.

• Here is a map of the permanent checkpoints to be aware of. The ones closest to San Antonio are along the U.S.-Mexico border, coming from the Rio Grande Valley, specifically Laredo, Piedras Negras, and McAllen.
• Border Patrol agents have stopped buses traveling within the United States, including one in January 2018 traveling only within the state of Florida, detaining at least one immigrant who they claim had overstayed their tourist visa.
• If you are within the 100-mile area from the border, CPB will claim they have many rights and access to you and your car, bus, or other vehicle. According to the ACLU of Texas, “CBP claims authority to board a bus or train without a warrant anywhere within this 100-mile zone […] And, depending on where you are in this area and how long an agent detains you, agents must have varying levels of suspicion to hold you.”
• At immigration checkpoints, every motorist is stopped and asked about their immigration status. Agents do not need any suspicion to stop you and ask you questions at a lawful checkpoint, but their questions should be brief and related to verifying immigration status. They can also visually inspect your vehicle. Some motorists will be sent to secondary inspection areas at the checkpoint for further questioning. This should be done only to ask limited and routine questions about immigration status that cannot be asked of every motorist in heavy traffic. If you find yourself at an immigration checkpoint while you are driving, know that fleeing from the checkpoint is a felony. Refusing to answer the agent’s question will likely result in being further detained for questioning, being referred to secondary inspection, or both.
• If you have DACA and are going through a checkpoint, it is recommended that you have documentation to show that you have DACA. Still, there have been many reports of DACA recipients being held for hours at checkpoints. Although most have been allowed to pass through, some do report being asked not only about their own immigration status, but also their parent’s names and immigration status.
• If you are held at the checkpoint for more than brief questioning, you can ask the agent if you are free to leave. If they say no, they need reasonable suspicion to continue holding you. You can ask an agent for their basis for reasonable suspicion, and they should tell you. If an agent arrests you, detains you for a protracted period or searches your belongings or the spaces of your vehicle that are not in plain view of the officer, the agent needs probable cause that you committed an immigration offense or that you violated federal law. You can ask the agent to tell you their basis for probable cause. They should inform you.

Here are some tips from Texas-based organizations about what to do if you encounter CBP inside the 100-mile border area:

1. You have the right to remain silent or tell the agent that you’ll only answer questions in the presence of an attorney, no matter your citizenship or immigration status.
2. You do not have to answer questions about your immigration status. You may simply say that you do not wish to answer those questions. If you choose to remain silent, the agent will likely ask you questions for longer, but your silence alone is not enough to support probable cause or reasonable suspicion to arrest, detain, or search you or your belongings.
3. If you have immigration documents, you should be aware that the law requires people with permission to be in the U.S. for a specific reason and for, usually, a limited amount of time — a “nonimmigrant” on a visa, for example — to provide information about your immigration status to immigration officers if they ask.
4. Generally, an immigration officer cannot detain you without “reasonable suspicion.” Reasonable suspicion is less robust than probable cause, but it is certainly not just a hunch or gut feeling. An agent must have specific facts about you that make it reasonable to believe you are committing or committed, a violation of immigration law or federal law. If an agent detains you, you can ask for their basis for reasonable suspicion, and they should tell you.
5. An immigration officer also cannot search you or your belongings without either “probable cause” or your consent. If an agent asks you if they can search your belongings, you have the right to say no.
6. An immigration officer cannot arrest you without “probable cause.” That means the agent must have facts about you that make it probable that you are committing, or committed, a violation of immigration law or federal law. Your silence alone meets neither of these standards. Nor does your race or ethnicity alone suffice for either probable cause or reasonable suspicion.
7. Know  that U.S. citizens do not have to carry proof of citizenship on their person if they are in the United States. If you have valid immigration documents and are over the age of 18, the law does require you to carry those documents on you. If you are asked by an immigration agent to produce them, it is advisable to show the documents to the agent or you risk being arrested. If you are an immigrant without documents, you can decline the officer’s request. An agent may likely ask you more questions if you decline a request. No matter what category you fall into, never provide false documents to immigration officials.
8. People who have entered the U.S. “without inspection” (like, through the border) may be subject to what’s called “expedited removal” from the U.S. especially if caught at the border – even if you’ve lived in the U.S. your whole life. Expedited removal is a summary deportation that bypasses an immigration judge. If you are told that you are subject to expedited removal but have lived in the U.S. for a long time, or have a fear of persecution of being returned to your country of origin, you should immediately inform the agents.

TRAVELING BY AIRPORTS

All international airports are considered “ports of entry,” or places where people can enter the U.S. from abroad. Both the TSA and Customs and Border Protection (CBP), both agencies under the Department of Homeland Security (DHS), are present and both agencies have the authority to ask for immigration documents should they suspect that someone is in the country without immigration status or is using false documents.

The risk of being racially profiled or targeted by these agencies has significantly increased under President Trump, both because of the policy changes getting rid of the categories prioritizing and de-prioritizing people for deportation, and because of the anti-immigrant rhetoric from the administration.

Although there have been relatively few reports of immigrants being identified and detained while traveling inside the continental United States, any undocumented immigrants are at risk while at airports, particularly when going through inspection of documents with the TSA agent. Although flying to San Antonio, Texas is no different than flying to other parts of the country, this section goes through the documents you can use to travel as well as what may flag you as undocumented.

Please remember that every individual’s immigration history and background will impact the particular process that they go through and risk they face. Because of the significantly higher risk, we urge you to consult a trusted immigration attorney, particularly if you are undocumented or a non-citizen who:

• Has been ordered deported from the U.S. and did not leave, or left and came back;
• Have any open criminal warrants or any open or resolved criminal convictions or arrests – even misdemeanors like driving under the influence or driving without a license;
• Have served any time in jail, particularly for sentences over one year, recently or in the past;
• Came to the United States in the last three years;

Note that there is an entire section on traveling while in deportation proceedings, which is different from traveling after deportation has been ordered.

If an individual is identified as potentially undocumented while traveling at the airport they may be referred to secondary inspection. It is at the Secondary Inspection that an individual may be asked for their immigration documents or be identified through DHS or other databases, and potentially taken into Border Patrol custody.

Even under President Trump, we know that even when a person who is considered priority is issued an NTA, or taken into custody, it does not mean that they will be deported. A strong legal and grassroots organizing response could still make a difference in stopping this person’s deportation and providing relief.

• Tip from an undocumented organizer: Think of evaluating the risk that you are taking traveling, as the risk that you would be taking in being part of a civil disobedience. Know your case, talk to a trusted organizer, talk to your lawyer, understand the risk, but also understand that community organizing and fighting deportation works, and that it all feels like part of living undocumented in the U.S. If you are an organizer helping someone decide what to do, just remember that it is their lives, that the consequences will be lived by them and their families, and that it must be their decision — whether it is to take a risk or not.

The security screening and type of identification required is the same to as traveling to other states. After getting a boarding pass, the next step is to  go to a Transportation Security Agency (TSA) agent and show them an identification and Boarding Pass, followed by the security body scans. The risk increases when an individual is traveling with a foreign passport without a visa. There have been cases of travelers who show a passport at an airport and then are asked for their visa, although none that we know of recently in San Antonio or Texas.

• Tip from undocumented traveler: Know the screening process well. If you are not used to traveling by plane, learn what you can put in your carry-on baggage and what you are required to take out of your bag and pockets when you go through the screening. And don’t forget about the extra screening for produce on the way back. (See additional information for transgender and gender-nonconforming individuals under “Additional Factors Affecting Risk”  or check out the information from the National Center for Transgender Equality for travelers, especially for information such as packing medicine and syringes, medical prosthetics, etc.)

TYPES OF IDENTIFICATION

According to the TSA, documents that are acceptable forms of identification to show at an airport include (see website for a full list):

• Driver’s licenses or other state photo identity cards issued by Department of Motor Vehicles
• Permanent resident cards
• Border crossing card
• Foreign government-issued passport
• Immigration and Naturalization Service Employment Authorization Card (I-766)
• Notice to Appear along with another identification with full name (see “Traveling While in Deportation Proceedings” below for more details)

State-issued ID or Driver’s License: A state-issued driver’s license or state ID is the document that is considered acceptable by TSA and does not identify the traveler as a non-US citizen or as a citizen of another country, which is particularly important for undocumented immigrants.

A note on “limited purpose” IDs: There are a few states that have been able have identifications or driver’s licenses that are not approved by TSA, particularly those from states that have changed their laws and regulations to make these available for undocumented immigrants. These are IDs or driver’s licenses that usually do not require a social security number, such as the limited purpose IDs or driver’s licenses in Washington D.C., Temporary Visitor Driver’s Licenses in Illinois.

According to DHS, these are IDs that “must clearly state” that they are not acceptable for federal purposes, and are not alone acceptable identification for TSA. DHS also “cautions against assuming that possession of a noncompliant card indicates the holder is an undocumented individual, given that several states issue non compliant licenses for reasons unrelated to lawful presence.” Places that have these types of identification include: Washington D.C., New York City, and Phoenix, Arizona. More information from DHS here or from a recent New York Times article here.

Foreign Passports: For undocumented immigrants who do not have access to a state-issued ID or driver’s license, a “foreign government-issued passport” is the only other option listed on the TSA website as acceptable. Although there is no visa requirement to travel inside the U.S., even for foreign travelers, having a document that identifies an individual as a citizen from another country raises the chances that there will be additional questions by TSA at the point of screening.

• Tip from undocumented traveler: If you are showing a passport to the TSA agent, hand it to them open to the page with your picture and demographic information, and place the boarding pass on the blank page of the passport, so that the TSA agent is literally only looking at the boarding pass and your ID.  Not giving them a chance to look through the pages in the passport decreases the chances of questions about entry stamps or visas. But remember there is no guarantee.

Fake Documents are Dangerous: In addition to not being able to get through the screening process, having falsified documents could lead to felony criminal charges and deportation proceedings.

Identification that do not match gender presentation: According to the National Center for Transgender Equality (NCTE), TSA rules required that name, gender and date of birth included in the flight reservation match the type of identification an individual provides at the airport. They say that “[t]he Secure Flight program checks this information against government watch lists, and gender information is used to eliminate false matches with the same or similar names – not to evaluate a person’s gender.” Meaning that the security check is supposed to be about whether the ID matches your flight, not your gender presentation.

NCTE further explains, “TSA Travel Document Checkers will check as you enter security to ensure that information on your ID matches your boarding pass. It does not matter whether your current gender presentation matches the gender marker on your ID or your presentation in your ID photo, and TSA officers should not comment on this.” This doesn’t mean that a traveler won’t encounter transphobic or heterosexist TSA agents who may direct an individual whose ID does not match gender presentation to a secondary screening, which may be riskier for undocumented travelers. See additional information under “Additional Factors Affecting Risk.”

• Tip from a genderqueer traveler: It’s their job to only verify the ID is valid, not to question your life. Often they would question whether it really was my ID, probing into my personal business. I’ve always just answered, ‘yes, it’s mine.’ They often inspect my ID for 5-10 minutes longer than everyone else, but they don’t have a right to question any aspect of my gender. I just don’t engage beyond that and just wait for them to approve my ID.
• Tip from a genderqueer traveler: The gender on your ID should match the gender on your flight. I always booked my flights myself so I could keep my boarding passes private until I got gender-affirming identification. For people who are buying other individual’s flights who may be transgender or gender nonconforming: You don’t have a right to as my birth-assigned sex because you are buying my flight. Find alternative forms of getting the flight, such as reimbursing me for it, or letting me book it directly. And please, do not ask people for their “real name” to book the flight, it is extremely offensive.

No ID that fits TSA guidelines: In some cases, when a person does not have the appropriate form of ID, TSA agents will try to confirm their identity by completing a form or asking additional questions that may include name, birth date, social security number, address. There are some online reports of other forms of IDs being used to supplement this process, like credit cards and school IDs, or other government-issued documents, but it should be noted that the TSA website states that even if your identity is confirmed, “you may be subject to additional screening.”

TRAVELING WHILE IN DEPORTATION PROCEEDINGS

Using immigration documents as IDs: Immigrants who are in deportation proceedings may use a Notice to Appear (Form I-182), an order of supervision (OSUP), or other government-issued forms that contain your name, photo, and other identifying information, but they  will require at least one more official document with a the traveler’s name or for the providing agency to confirm your identity.

TSA has explained that they evaluate a variety of government-issued documents to establish a person’s identity. If a passenger does not have any of the listed forms of ID, they are allowed to present two other types of identification. “One of the two forms of identification must bear the individual’s name and other identifying information such as a photo, address, phone number, social security number or date of birth […] The I-862 form [or Notice to Appear] may be used along with another form of identification in this instance.”

If a person can only present the Notice to Appear as an identification document, the agency explains, “TSA will attempt to establish the passenger’s identity through DHS partner components” such as CPB or ICE (Please note that this is only for immigrants with an NTA, which indicates that they are already in CPB or ICE database). If these agencies are able to confirm the information requested, the person is allowed to continue like other passengers to the body and luggage scan.

Open deportation proceedings: Individuals in deportation proceedings, including those who have been given a stay of removal or another form of discretionary, temporary relief, have different restrictions for them set by the immigration judge or ICE officers. In most cases these restrictions are listed in the Order of Supervision, and can include having to check with the deportation officer and get permission before traveling outside of the state (or sometimes tri-state area), and not traveling outside of the country. The documents have instructions on contacting the appropriate agency.

• Tip from an undocumented organizer: When an individual asks for permission from their deportation officer for travel, it is helpful to bring a letter from the organization inviting them to participate in the event, the dates for travel, the address of the location where the individual is staying, and the flight itinerary or flight reservations. If the person asking for permission doesn’t have an attorney, make a plan to accompany them as an interpreter, and talk through the process. After the request is made, a couple strategic calls or e-mails to the office can help.

Traveling with an Ankle Monitor: A person wearing an ankle monitor can travel and be approved to go through the security checkpoint before boarding an airplane. In addition to asking for permission from the deportation officer or supervisory agency, an individual traveling with an ankle monitor could tell the TSA agent before going through the body and baggage scan. If the TSA agent does not know, the ankle monitor will show up on the body scan and potentially set off the metal detector. But whether the TSA agent knows ahead of time, or while the scan is happening, it is very likely that this will lead to a secondary inspection. This means both a more intense search of the individual’s luggage and person, including swabbing hands for explosive chemicals and a pat-down.  

One agency that runs ankle monitors out of Florida, quotes TSA on the issue, stating “Outside of any other law enforcement issues that would prohibit a person from boarding an aircraft, wearing a monitoring device, including a medical monitor, during security screening should not pose a problem.” The also warn that if the person needs to go through secondary screening, it “often means delaying you to determine if you are fleeing the jurisdiction. Therefore it is wise to get a letter from us prior to air travel indicating what the bracelet is for and that you are not prohibited from leaving the jurisdiction.”

HETEROSEXISM AND HOMOPHOBIA AT AIRPORTS

Gender nonconforming and transgender travelers, particularly those who are undocumented and do not have identifications that match their gender, may face additional scrutiny while traveling through a TSA checkpoint. See the note we have on identifications not matching gender presentation above, under “Types of Identification” and the National Center for Transgender Equality a guide for transgender travelers from packing to security screening. Below are some of the more relevant information that could be useful to minimize risk for undocumented travelers from that guide:

Packing Luggage: Gel-filled prosthetic items, such as used for breast augmentation, are not included in the 3-ounce limit for liquids, “as they are considered medically necessary” but their presence “may result in extra screening.” They recommend packing these items in checked luggage, or calling the “TSA Cares Hotline” to speak with a trained representative, at 1-855-787-2227.

Body Scanners: Most airports use “Advanced Imaging Technology” that scans the profile of a person’s body and catch an “anomaly” or “alarm” including items that may be hidden under a person’s clothing. The NCTE notes that in some cases the scanners “can register body contours not typical for a person’s gender as anomalies. Foreign objects such as prosthetics, binding garments, or even paper or change left in a pocket will commonly register as anomalies requiring further screening. Often this consists of a limited pat-down of the area(s) where an anomaly was detected, however it can potentially involve a complete pat-down.” You can opt-out of scans at any time, but will be then required to undergo the pat-down.

The pat-down: A pat down may take place when there is additional information needed after the body scan or as an alternative, and can be very invasive. The pat-down must be performed by an officer of the same gender as the traveler, based on your gender presentation or identity. NCTE says that “transgender women should be searched by female officers, and transgender men should be searched by male officers. The gender listed on your identification documents and boarding passes should not matter for pat-downs, and you should not be subjected to personal questions about your gender. If TSA officers are unsure who should pat you down, they should ask you discreetly and respectfully.”

• Tip from transgender traveler: Prepare yourself mentally that there will be uncomfortable moments. Like being asked if you are male or female, and how or who should pat you down. If people prefer a man or woman, be vocal about it. For people who have not had surgeries, clothing can also be an issue, and they may be asked if they are wearing something under their clothes or if they have something hidden under their shirt. A lot of pressure is put on the passenger, be confident, direct and honest in our interaction with agents.

PREPARATION AND ORGANIZING WORK

Under the Trump administration it is a reality that defending undocumented and other non-citizens from deportation through organizing and legal defense has become much more difficult and require more resources than under the previous administration. However, there are some things that depending on your background can be useful if there is a need to defend you from immigration authorities. Those include:

• Know that extra inspection, detention by border patrol, or even a deportation order does not mean a deportation or the end of the fight. If you have never been deported, the process will still take an immigration court, and the possibility of prosecutorial discretion. If a person has already been deported in the past or has a final order of removal, although the process will go much faster, there is still a chance to fight through good legal defense and community organizing.
• A trusted person in the family should know where all documents are, including any immigration, criminal, education, legal, medical, and family history information;
• In case that representation is needed, the you should  sign a DHS Privacy Waiver Authorizing Disclosure to a Third Party so that family members, or community organizers authorized can have access your information, even if in detention.

• If you have an immigration lawyer, sign a g-28 form for and carry it with you or leave it with your attorney as proof that you have representation. Carry their information with you. Make sure you tell your immigration attorney your plans and have an emergency plan.
• Write the phone number of you immigration attorney, trusted community organizer,  family member, or other point of emergency contact with permanent marker on your body, so that in case you are detained, you can have a person’s contact information. Makes sure you plan with this person what to do and who to call in case you are detained.
• Plan a protocol of letting an individual know when you are supposed to arrive, and make a plan for what to do in case you are not able to get in touch with them due to being detained by immigration enforcement or delayed by additional protocols.

Make sure that your trusted family members, community organizers, and attorneys know to get in touch with Mijente or local trusted organizers should you be targeted by immigration enforcement during your travel to Lánzate.